Wolfe v. Hatheway

Prentice, J. The questions presented arise out of the ambiguous language which the testatrix used in the in-artificially framed codicil to her will. The principles which are to be observed in interpreting the instrument are familiar ones. The cardinal rule is that the intent of the testator is to be sought after and carried into effect, if that intent can be discovered, has been sufficiently expressed, and is not contrary to some positive rule of law. Allyn v. Mather, 9 Conn. 114, 125; Mathewson v. Saunders, 11 id. 144, 149; Jackson v. Alsop, 67 id. 249, 252, 34 Atl. 1106; Chesebro v. Palmer, 68 Conn. 207, 213, 36 Atl. 42. In the search for the intent of the testator all parts of the will are to be *185 taken into consideration; Allyn v. Mather, 9 Conn. 114, 125; and they are to be examined in the light of the circumstances which surrounded the testator when he made his will. Ruggles v. Randall, 70 Conn. 44, 48, 38 Atl. 885. The question is not what did the testator mean to say, but, always, what did he say. Weed v. Scofield, 73 Conn. 670, 677, 49 Atl. 22. If a leading feature of a will is equality or impartiality, the courts will lean, in case of a doubtful clause, to such a construction as will carry out the scheme of equality. Farnam v. Farnam, 53 Conn. 281, 289, 2 Atl. 325, 5 id. 682; Wheeler v. Fellowes, 52 Conn. 238, 241. The meaning of language used cannot be determined by an arbitrary rule of legal definition, but depends in each case on the peculiar provisions and character of the special will in question, which must to a large extent be its own interpreter. Ches ebro v. Palmer, 68 Conn. 207, 213, 36 Atl. 42. While there is a presumption that the testator used language in its usual and legal sense; this presumption will be overthrown when an examination of the instrument, in the light of the surrounding circumstances, clearly shows that the intent of the testator will not be effectuated by so interpreting it, and that the language was used in another sense. In such case that meaning will be attached to the language which the testator attached to it when he used it. Gold v. Judson, 21 Conn. 616, 625; Gerard v. Ives, 78 Conn. 485, 489, 62 Atl. 607. Words of an inartificially drawn will may thus have a meaning given to them which they do not ordinarily or properly possess. Hurd v. Shelton, 64 Conn. 496, 498, 30 Atl. 766. Where a testator has omitted words which are necessary to express the meaning intended, and the intended meaning is clearly inferable from the will taken as a whole, the court will by construction supply the omitted words. Kellogg v. Mix, 37 Conn. 243, 247. If two modes of construction are fairly open, one of which will turn a bequest into an illegal perpetuity, while by following the other it would be valid and operative, the latter mode *186 must be preferred. Woodruff v. Marsh, 63 Conn. 125, 136, 26 Atl. 846. There is a presumption against the intent of a testator to leave any part of his estate intestate, but a construction required by the terms of a will cannot be avoided because it leads to intestacy in whole or in part. Warner v. Willard, 54 Conn. 470, 472, 9 Atl. 136; State v. Smith, 52 Conn. 557, 563; Jackson v. Alsop, 67 id. 249, 252, 34 Atl. 1106; Bill v. Payne, 62 Conn. 140, 142, 25 Atl. 354. The testatrix in her will treated her four sons with strict equality and impartiality. Her purpose to favor no one of them to the advantage of another, in so far as her desire to secure to each the most certain assurance of the benefits of her intended bounty could be carried into effect under the law, is equally apparent in the codicil. She originally gave one quarter of her residuary estate to each son absolutely. Circumstances apparently arose between the years 1883, when the” will was made, and 1889, when the codicil was executed, or were in the latter year foreseen as possible, which led her to the conclusion that'the benefits of her bounty would be more certainly or permanently assured to her intended beneficiaries if the shares originally given to two of the sons were surrounded by the safeguards of a trust. This naturally led to provisions with respect to these shares which give the appearance of partiality, but it is only the appearance. The same quantum of property, less $1,000 given outright, is placed under the trust in each case, as was originally given absolutely, and the benefits of it are plainly intended to be confined to the son during his life, and after his death to his immediate family and stock until such stock should cease to be. The duty of expressing the testatrix's purpose in a codicil was unfortunately performed by some one who knew little of the proper use and meaning of legal words and phraseology. Nevertheless, a careful reading of the language used to embody the trusts which were desired to be created, in the *187 light of the accepted principles already noticed, reveals the interpretation which should be placed thereon. The provisions which relate to the rights of the two sons Marshall S. and James H., although clumsily framed, present no questions. It is clear and conceded that to each is given the net income of one of the four equal shares into which the residuary estate is divided during his life, less $1,000. The codicil adds, “and at the death of either or both, to their heirs at law respectively.” It is apparent from the immediately following context that the testatrix, in her ignorance of legal relations and legal terms, here used the term' “heirs at' law” as descriptive of the class of persons more particularly defined by her immediately afterward as “wives” and “children,” and that to avoid the creation of an illegal perpetuity it ought to be so interpreted. This is the group of persons who would most naturally be suggested to her mind as next to her sons in the order of her scheme of trust benefactions, and as the one preceding in order the grandchildren in whose favor the next provision of the codicil ran. The wives thus designated as cobeneficiaries of income with children, will be interpreted to include only those women who occupied that position at the death of the testatrix, and not any woman or women who since that time may have come into that position. Beers v. Narramore, 61 Conn. 13, 19, 22 Atl. 1061; St. John v. Dann, 66 Conn. 401, 405, 34 Atl. 110. The term for which the payment of income is thus directed to be made to the surviving wife and children of the sons respectively, is defined by the immediately following provisions already referred to, to wit, “and I hereby direct that at the death of their wives and all the children of the said Marshall S. and James H. Trulock, that the said property may be given directly and equally to their grandchildren,” etc. This language is, of course, to be read distributively, and as though the word “respectively” had been inserted after the names of the sons, as an accurate *188 expression of the testatrix’s manifest intent would have dictated; so that the net income derived from the share of the testatrix’s estate of which the net income was payable to either of said sons during his life, becomes, upon his death, payable to his wife as aforesaid, if any, and his children, and continues to be so payable until the death of the last survivor of such wife and children, whereupon the trust to pay over to anybody income derived from said share ceases, and said share stands for distribution as principal, pursuant to other provisions of the codicil, or, in the event of their being ineifective, pursuant to the law. Until the trust to pay over the income derived from a share terminates, and the time arrives when the share is ready for distribution as principal, the property which comprises that share remains in the hands of the trustee as a trust fund. The provisions of the codicil in favor of grandchildren of the two sons is in contravention of the statute against perpetuities, which was not repealed until after the death of the testatrix, and the remainder attempted to be given to them is intestate estate of the testatrix. Tingier v. Chamberlin, 71 Conn. 466, 42 Atl. 718. The gifts of income in favor of the wives and children as defined are not within the prohibitions of the statute, and are valid. The Superior Court is advised to render judgment in conformity with the views above expressed. No costs in this court will be taxed in favor of either party. In this opinion the other judges concurred.